B JAGANNATHA NAIDU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THESE two petitions raise a common point as to whether after the serving of the sentences in default of payment of fine imposed for an offence an order of attachment of property can also be passed under section 386, Criminal Procedure Code, without giving reasons.

(2.) THE accused in S.T.C. No. 9 of 1969 and those in S.T.C.No. 10 of 1969, on the file of the Munsif-Magistrate, Huzurabad, had been convicted of the offence under section 188, Indian Penal Code, and sentenced to pay a fine of Rs. 25 or in default to undergo simple imprisonment for two weeks. All the accused except accused 35 in S. T. C. No. 10 of 1970 , had undergone in default sentences and yet the Court issued warrants of attachment under section 386 (1) (a), Criminal Procedure Code for recovery of the fine amount due from each of the accused. On revision the learned Sessions Judge, Karimnagar, has made the references under section 438, Criminal Procedure Code, for setting the order of the Magistrate issuing attachment warrants on the ground that he had not given special reasons for issuing the same as required under the proviso to section 386 (1), Criminal Proceudre Code. Proviso to section 386 (1) reads as follows; " Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so." Before the proviso was introduced there was no restriction on the Court from issuing the warrants for recovery of fine amounts in spite of the accused undergoing the in default sentences. Even after the introduction of the proviso it does not mean that the undergoing of the default sentence operates as a discharge or satisfaction and the fine levied cannot be recovered. THE recovery is discretionary and not mandatory as under section 547, Criminal Procedure Code, but there must be special reasons for the recovery of the same. THE special reasons to be given will depend on the circumstances of each case. It is therefore, necessary that if the Court thought that in spite of having undergone the default sentences the recovery of fine was also necessary, it should give special reasons. In the present case no special reasons have been given. As the offence under section 188, Indian Penal Code, is for defying the prohibitory orders issued under section 144, Criminal Procedure Code, there can be no special reasons for the recovery of the fine in the present case. I, therefore, accept the references and set aside the orders of the Magistrate issuing warrants for attachment of the property to recover the fine amounts under section 386 (1), Criminal Procedure Code. In the result the references are accepted. Except in the case of the accused 35 in S.T.C. No. 10 of 1969 and Sammaiah, Accused No. 80 in S.T.C. No. 9 of 1969 who have not undergone the indefault sentence, the fines, if collected, will be refunded to the accused. Reference accepted.